By Howard Levy, Esq.
Myth vs. Reality:
IRS Collection Threats
ur clients come to us with many different ideas about
what the government will do to them because they
did not pay their taxes. The information they gather
about IRS collection threats often comes from friends,
the media, and even the IRS.
Think about their anxiety: Is the IRS going
to show up one day and seize my house? Put a
levy on my income so I cannot provide for my
family? Shut down my business? When do I
get my life back?
Fearing the IRS affects health, work, and
relationships. From wage earners to middle
managers to business owners, IRS problems are
all-consuming. But most of what our clients
hear—and fear—is more myth than reality.
The realities are often much different than
the myths. There are limitations on the IRS
that prevent surprise, ensure rights of due
process, and permit resolution without the
threat of levy. Asset seizure is tempered by
Internal Revenue Code (IRC) provisions that
restrict what the IRS can take.
Here is a guide to knowing when the IRS
can levy and what they are permitted to take.
IRS STARTING POINT: FINAL
NOTICE OF INTENT TO LEVY
The starting point in every collection case is
the rule that the IRS cannot take property—
including wages and bank accounts—until it
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first sends a letter stating its intentions. This
letter is called a Final Notice of Intent to Levy.
It provides rights of due process to be heard
before any levy or seizure action is taken. The
final notice is required to be sent pursuant to
IRC Secs. 6330 and 6331.
To the layperson, every notice the IRS
sends looks like it gives it the ability to levy.
The stream of collection letters the IRS issues
can be confusing—they all seem threatening.
Be assured that they are not. Let’s sort out
the various collection notices and get to the
notice that has legal significance.
Here is the order in which the IRS issues
collection notices:
(1) CP 14: Balance Due
(2) CP 501: Reminder, Balance Due
(3) CP 503: 2nd Notice, Balance Due
(4) CP 504: Final Notice, Balance Due
(5) CP 90: Final Notice of Intent to Levy
and Notice of Your Right to a Hearing
This cycle can take several months to
complete. Each notice is usually issued
about five weeks apart. In high-dollar cases
or for businesses, the IRS may sometimes
skip the complete cycle and go straight to
the final notice.
Of the notices, the only notice that permits
any action of consequence is the CP 90, Final
Notice of Intent to Levy and Notice of Your
Right to a Hearing. This notice is the only one
that permits the IRS to start proceedings to
take wages, bank accounts, automobiles, real
estate, and business assets. It can be issued
from the Automated Collection Service (ACS)
or by a revenue officer.
The first four notices of balances due (CP
14, CP 501, CP 503, and CP 504) do not give
the IRS any legal rights other than to take a
state tax refund after the issuance of CP 504,
the final notice of a balance due. This limitation holds whether you are dealing with a
revenue officer or the IRS ACS.
Do not be confused by the other notices or
what the IRS may tell you. These notices may
be important and urgent, but they are not as
threatening as they may appear. Only the Final Notice of Intent to Levy gives the government the legal right to take action.
Ask your clients to bring in the mail they
have received from the IRS. Open it, go
through it, look for the Final Notice of Intent
to Levy. To supplement what your clients bring
in, obtain an IRS account transcript which
will indicate whether the IRS has sent out the
final notice. Review the notices and account
transcripts and let your clients know the reality
of whether a collection threat is real.
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If the IRS has not sent the CP 90, your
client is protected. Any negotiations with
the IRS will be without the threat of levy
until it is sent.
If the IRS has recently issued the final
notice, you have important rights to protect
for your client by filing a collection due
process (CDP) appeal.
RESPONSE TO NOTICE OF LEVY:
COLLECTION DUE PROCESS APPEAL
If the IRS has sent its final notice, it has to
wait thirty days after the letter is sent before
starting levy action. During this 30-day window, you have the right to file a request for an
administrative meeting with an IRS appeals
officer. This is known as a CDP.
The purpose of a CDP appeal is to discuss
alternatives to the intent to levy and reach
case resolution without enforcement.
There are substantial benefits to negotiating with the IRS through a collection due
process appeal. The advantages include:
• The IRS is prohibited by law from taking
property until the appeal is completed.
Typically, it takes the IRS about three to
six months to have a case assigned to an
appeals officer and for your conference.
• There will be one IRS person assigned to
your case, which is a vast improvement
from the impersonal and often frustrating negotiations that can take place with
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ACS. You can even have a face-to-face
meeting if you request—unheard of and
impossible if ACS had control.
• The appeal will allow you to move the
case from the collection division to the
appeals division; i.e., from the ACS or a
revenue officer to an appeals officer.
Meeting with an IRS appeals officer usually
gives you the best chance at reaching a fair
resolution. IRS appeals officers tend to be best
equipped to resolve your case in a manner
that is fair to you and your client. Negotiating
without being in a corner from the threat of
levy has its advantages.
If you cannot agree with IRS Appeals
over how to resolve your case, you have
the right to have an independent Tax Court
judge review it. In such a case, the appeals
officer should consider how a Tax Court
judge would rule in deciding the case. This
is a rare opportunity to go outside the IRS
for resolution of a collection case. The hold
on collection will continue through Appeals
and while your Tax Court case is pending
and until it is decided, which can take
twelve months.
Solutions you can request from Appeals
and have reviewed by the Tax Court include
requests for an installment agreement, hardship “uncollectible status,” an offer in compromise, or innocent spouse treatment. Remember that Appeals will decide these issues, not
ACS or revenue officers.
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It is important to remember that timely
CDP appeals are those that are filed within
thirty days after the Final Notice of Intent to
Levy is issued. But even if it has been more
than thirty days since the IRS sent the final
notice, you still have options. IRS administrative policy (see Internal
Revenue Manual 5.1.9.3.2.2) is to process a late-filed CDP appeal if it is filed within one
year after the final notice is sent. Filing your
appeal late gives you the same administrative
rights as filing timely—a hold on collection and
a meeting with an appeals officer. What you
lose by filing late is the right to go to Tax Court.
EXCEPTIONS: WHEN A NOTICE
OF INTENT TO LEVY IS NOT
REQUIRED
There are a few extreme circumstances where
the IRS is permitted to go after property and
bypass the requirement of notice.
Here are two situations where the IRS can
catch your client by surprise:
• Jeopardy levy. If the IRS has reason
to believe that collection of the tax is
in jeopardy, IRS does not have to give
warning before levying. IRS collections are in jeopardy if assets are being
moved out of the United States, or being
concealed, dissipated, or transferred to
third parties. The immediate harm that
can be caused by these actions gives the
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IRS the ability to seize without sending
out advance notice.
• Disqualified employment tax levy.
This levy can happen if there is “pyramiding” of employment tax liabilities.
IRS defines pyramiding as a fraudulent
practice where a business withholds
payroll taxes but intentionally fails to
remit them. A common characteristic of
businesses involved in pyramiding is to
file for bankruptcy, start a new business
under a different name, and then begin
the scheme again. The IRS takes this
very seriously, and Congress agreed,
resulting in an exception to the ordinary
requirement of notice and rights of
appeal before levy and seizure.
A disqualified employment tax levy would
come into play if the IRS sent a Final Notice
of Intent to Levy to collect an older employment tax period which was the subject of a
CDP appeals hearing. If, during the two years
since the appeal new employment tax debts
came due, the IRS could levy the new tax
periods—those that are being pyramided—
without notice.
Putting those exceptions aside, bear in
mind that once the IRS issues the final notice
for a tax period, it does not have to do it
again. So it is important to know where your
client is in the IRS collection system. You
can be surprised by an IRS levy—even if the
exceptions to notice do not apply—if the IRS
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long ago issued the CP 90 and the rights to
appeal have lapsed.
WHAT CAN THE IRS
REALLY SEIZE?
If the IRS is in position to levy or seize, it is
important to know what is at risk.
No matter what the IRS may tell your
clients or what you may have heard, it is
very unlikely the IRS will levy on a house,
car, furniture, or equipment. The assets that
clients may be the most concerned about—
their stuff—are the items the IRS is least
likely to take. This is important to know in
negotiating with the IRS.
In 2009, the IRS made 581 seizures of “hard”
assets such as houses, cars, and other personal
property. By comparison, in the same year the
IRS sent out almost 3,500,000 levies on “soft”
assets, such as bank accounts and wages.
IRS attempts to seize “hard” assets are serious, make no mistake about it. But the IRS is
clearly more intent on tying up cash.
The reasons for the focus on cash, not
personal property, are in the IRC and the
Internal Revenue Manual. Both provide
that if an asset—for instance a house—lacks
equity, the IRS is prevented from seizing it.
This eliminates a vast majority of potential seizures. Even if an asset has equity, it
cannot be taken if it is listed as exempt in
the IRC and is protected from the IRS as a
matter of public policy.
Does the property have equity?
Internal Revenue Manual 5.10.1.2 states
that seizures are prohibited “where the taxpayer has insufficient equity in the property.” IRC Sec. 6331(f) prevents the IRS from
making an “uneconomical levy,” meaning
the IRS must get an economic recovery
from the levy to do it.
Examples: If a car is worth $7,500, and there
is a bank loan of $7,500 on it, there is no equity,
and the IRS is not interested. For a house, take
the value, subtract the mortgage, and reduce
it further by the costs of sale. There has to be a
fairly substantial amount left afterwards for the
IRS to be interested under the equity rules.
Even if there is equity, a seizure is still
generally something the IRS does not desire
to do. In most situations a lack of cooperation
after repeated attempts by the IRS is a precursor. Many seizures need managerial approval
before being sent to an IRS property liquidation specialist. And some, such as a personal
residence, require outside court approval.
(See {IRC Sec. 6334(e)((1).})
Is the property exempt and protected
from seizure?
In addition to the protection the tax
code gives to any property that lacks equity,
Sec. 6334 of the IRC lists specific types of
property that are protected from IRS collection actions. These protections are known
as exemptions.
The assets that are exempt from the IRS
under Sec. 6334 include the following:
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• Necessary clothing. Bear in mind that
the tax code uses the words “necessary” in describing the clothing that is
exempt from IRS collections, meaning
the IRS can technically take clothing
that is not necessary, such as designer
shoes, handbags, etc. But the IRS is not
taking your client’s television, bed, or
lawn mower.
• Household goods and furnishings, currently exempted up to $8,250 in value; and
• Tools of a trade or business, exempted up
to $4,120 in value.
There are also sources of income that are
protected from IRS’ power to levy under Sec.
6334, including:
• Unemployment benefits;
• Workers’ compensation benefits;
• Service-connected veteran’s disability
benefits;
• Income needed to pay court-ordered
child support;
• Supplemental social security for the aged,
blind, or disabled; and
• State and local public assistance or welfare programs which are based on need
or income.
It should be noted that the income
protections alluded to under Sec. 6334 for
unemployment benefits, workers’ compensation benefits, and veteran’s disability
benefits are tempered by the Federal Levy
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Program. This program—permitted under
IRC Sec. 6331(h)—allows the IRS to take
fifteen percent of these benefits. Although
fifteen percent is technically permitted to
be taken by law, current IRS policy does
not permit the fifteen percent levy on these
otherwise exempt benefits. See Internal
Revenue Manual 5.11.7.2.1(5).
The statutory design of Sec. 6334 means
that if an asset or source of income is not specifically excluded from the IRS by statute,
it is fair game. This permits the IRS to take retirement accounts, which are not listed in Sec.
6334 but are protected from all other creditors.
It is important to remember these
exemptions when completing IRS financial
statements, such as Form 433A (Collection
Information Statement for Wage Earners
and Self-Employed Individuals). Claim the
value of protected assets as exempt. In an
offer in compromise, make sure that these
assets are not included in the value of the
offer as they are off limits to the IRS; again,
claim it as exempt. NAEA
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provide taxpayers with due process—notice
and a right to be heard—before it can take
someone’s property.
The IRS issues many look-a-like notices,
but the one that starts the levy process is the
Final Notice of Intent to Levy. A CDP appeal
filed in response to the final notice allows
resolution of IRS problems without the
threat of levy. The appeal also stops IRS collection action, moves a collection case into
appeals, and can provide outside relief from
the Tax Court.
Even if the IRS is procedurally able to start
levy action, it is important to know that, for
practical purposes, their resources are overwhelmingly devoted to taking bank accounts
and wages, not personal property. Even if the
IRS desires to seize personal property, there
are limitations on what can be taken. The IRS
cannot make a seizure when there is no recovery. Property specifically listed as exempt in
the IRC is also off limits.
Every IRS collection threat should be
handled based on the realities of what the IRS
can do, not the myths. EA
CONCLUSION
IRS problems are serious matters, but effective
representation requires understanding the
procedural realities of tax enforcement.
The IRC has limits on when the IRS can
levy on property and boundaries on what
it can take. With few exceptions the IRS
cannot act with surprise. The IRS has to
About the Author
Howard S. Levy Esq. is a former trial attorney for the IRS
and an instructor at NTPI. He has over twenty years of experience in IRS collection proceedings, Tax Court litigation, IRS
administrative appeals, and the use of bankruptcy to resolve
IRS controversies. Howard is a member of Voorhees & Levy
LLC in Cincinnati, OH, and can be contacted at howard@
voorheeslevy.com or at www.howardlevyirslawyer.com.
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